The H-1B visa is the most common visa classification for foreign students graduating from U.S. universities. Only 65,000, however, can be granted in a fiscal year, which is referred to as the H-1B cap.
Because more applications are typically received than there are visas available, the U.S. Citizenship and Immigration Service (USCIS) uses a lottery to distribute them.
By regulation, USCIS must accept applications for the first five business days of April before holding a lottery. On April 5, USCIS received a sufficient number of H-1B petitions to meet the cap for the 2020 fiscal year – 201,011 in total. USCIS completed the lottery April 10. For the remainder of the fiscal year, new cap-subject H-1Bs are not available. Employers must therefore find other options to employ their international workforce.
F-1 OPT / STEM OPT / CPT
Individuals seeking H-1Bs are frequently F-1 students who have been granted 12 months of work authorization upon graduation — optional practical training (OPT). An OPT individual will be able to work for the remainder of that 12-month period, and if he or she has a STEM degree, it may be possible to extend the OPT for another 24 months.
H-1B1/E-3
The H-1B1 is a special carve out of H-1Bs for Chile and Singapore, under treaties with those countries. While it also carries a numerical limit, low demand means that they will normally be available the entire fiscal year. Similarly, the E-3 is for Australians who will be employed in a specialty occupation. It is also based on a treaty, and there is no annual limit.
TN
The TN category was created as part of the North American Free Trade Agreement. It allows individuals from Canada or Mexico to be employed in the U.S. as long they are employed in an occupation specifically enumerated in the treaty and meet the corresponding requirements. There is no limit on this category.
O-1
The O-1 classification is for an individual who possesses "a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor." This can be shown through receipt of a major internationally recognized award, such as a Nobel Prize, or by providing documentation in at least three of eight categories listed in the regulations. While not impossible, the requirement that the individual be at the top of his or her field makes it difficult for recent graduates to obtain an O-1.
J-1
The J-1 category is for exchange visitors and run by the U.S. Department of State. There are numerous categories of exchange visitors under the J-1, from au pair to research scholar. Two of the categories are intern and trainee. The distinction between the two is based on where the individual is in their education and career. When a position can properly be considered an internship, the J-1 is a viable option for employers. If it appears that the J-1 is just being use to extend work authorization or bridge an H-1B gap, it likely will not be approved.
Pursuing permanent residence
While there are annual limits on immigrant visas based on category and the applicant's birthplace, these limits simply determine how quickly the applicant can get permanent residence. The limits are often referred to as the visa backlog. The process itself, however, can be started at any time. Individuals born in countries that do not have a large backlog often can get far enough along in the permanent residence process to receive a work permit within a year of starting the process. Therefore, it can be a viable option for an F-1 student who just started OPT or who has a STEM OPT extension.
Although it is no longer possible to get a cap subject H-1B in the 2019 fiscal year, there are still options. Employers facing this issue should consult with a qualified — and creative — immigration attorney to see what can be done.
David S. Jones is managing partner with Fisher Phillips' Memphis office.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
